BILL NUMBER: SB 68 CHAPTERED
BILL TEXT
CHAPTER 220
FILED WITH SECRETARY OF STATE AUGUST 4, 1997
APPROVED BY GOVERNOR AUGUST 4, 1997
PASSED THE SENATE JULY 18, 1997
PASSED THE ASSEMBLY JULY 11, 1997
AMENDED IN ASSEMBLY JULY 3, 1997
AMENDED IN ASSEMBLY JUNE 23, 1997
AMENDED IN ASSEMBLY JUNE 11, 1997
AMENDED IN SENATE APRIL 15, 1997
AMENDED IN SENATE MARCH 20, 1997
INTRODUCED BY Senator Kopp
DECEMBER 11, 1996
An act to amend Sections 125.7, 495, 652, 1247.66, 1267, 1310,
1322, and 22958 of the Business and Professions Code, to add Section
11410.60 to the Government Code, to amend Sections 1280, 1280.1,
1295, 1337.9, 1408, 1410, 1428, 1437, 1615, 1618, 1639.4, 1643.1,
1728.2, 1736, 1736.5, 106715, 108900, 111645, 111855, 111940, 115145,
116425, and 116625 of, and to add Section 100171 to, the Health and
Safety Code, to add Section 1953.5 to the Unemployment Insurance
Code, and to amend Sections 14088.23, 14123, 14123.2, 14124.6,
14126.50, 14171, 14171.5, 14171.6, and 14304 of the Welfare and
Institutions Code, relating to administrative adjudication, and
declaring the urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 68, Kopp. Administrative adjudication.
Existing law, operative July 1, 1997, contains provisions
regarding the administrative adjudication provisions of the
Administrative Procedure Act.
This bill would make these administrative adjudication provisions
of the act applicable to a decision by a quasi-public entity, as
defined, with a specified exception, if a statute vests the power of
decision in the entity and, under the federal or state Constitution
or a federal or state statute, an evidentiary hearing for
determination of facts is required for formulation and issuance of
the decision.
The bill would also provide that whenever the State Department of
Health Services is authorized or required by statute, regulation, due
process, or a contract to conduct an adjudicative hearing leading to
a final decision of the Director of Health Services or the
department, in addition to the administrative adjudication provisions
otherwise applicable to state agencies, a specific procedure would
be prescribed that would, in certain areas of administrative law,
govern instead of the otherwise applicable provisions. The bill
would make conforming changes to other provisions relating to state
hearings.
This bill would declare that it is to take effect immediately as an
urgency statute.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 125.7 of the Business and Professions Code is
amended to read:
125.7. In addition to the remedy provided for in Section 125.5,
the superior court for the county in which any licensee licensed
under Division 2 (commencing with Section 500), or any initiative act
referred to in that division, has engaged or is about to engage in
any act that constitutes a violation of a chapter of this code
administered or enforced by a board referred to in Division 2
(commencing with Section 500), may, upon a petition filed by the
board and accompanied by an affidavit or affidavits in support
thereof and a memorandum of points and authorities, issue a temporary
restraining order or other appropriate order restraining the
licensee from engaging in the business or profession for which the
person is licensed or from any part thereof, in accordance with this
section.
(a) If the affidavits in support of the petition show that the
licensee has engaged or is about to engage in acts or omissions
constituting a violation of a chapter of this code and if the court
is satisfied that permitting the licensee to continue to engage in
the business or profession for which the license was issued will
endanger the public health, safety, or welfare, the court may issue
an order temporarily restraining the licensee from engaging in the
profession for which he or she is licensed.
(b) The order may not be issued without notice to the licensee
unless it appears from facts shown by the affidavits that serious
injury would result to the public before the matter can be heard on
notice.
(c) Except as otherwise specifically provided by this section,
proceedings under this section shall be governed by Chapter 3
(commencing with Section 525) of Title 7 of Part 2 of the Code of
Civil Procedure.
(d) When a restraining order is issued pursuant to this section,
or within a time to be allowed by the superior court, but in any case
not more than 30 days after the restraining order is issued, an
accusation shall be filed with the board pursuant to Section 11503 of
the Government Code or, in the case of a licensee of the State
Department of Health Services, with that department pursuant to
Section 100171 of the Health and Safety Code. The accusation shall
be served upon the licensee as provided by Section 11505 of the
Government Code. The licensee shall have all of the rights and
privileges available as specified in Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code. However, if the licensee requests a hearing on the accusation,
the board shall provide the licensee with a hearing within 30 days
of the request and a decision within 15 days of the date of the
conclusion of the hearing, or the court may nullify the restraining
order previously issued. Any restraining order issued pursuant to
this section shall be dissolved by operation of law at the time the
board's decision is subject to judicial review pursuant to Section
1094.5 of the Code of Civil Procedure.
(e) The remedy provided for in this section shall be in addition
to, and not a limitation upon, the authority provided by any other
provision of this code.
SEC. 2. Section 495 of the Business and Professions Code is
amended to read:
495. Notwithstanding any other provision of law, any entity
authorized to issue a license or certificate pursuant to this code
may publicly reprove a licentiate or certificate holder thereof, for
any act that would constitute grounds to suspend or revoke a license
or certificate. Any proceedings for public reproval, public reproval
and suspension, or public reproval and revocation shall be conducted
in accordance with Chapter 5 (commencing with Section 11500) of Part
1 of Division 3 of Title 2 of the Government Code, or, in the case
of a licensee or certificate holder under the jurisdiction of the
State Department of Health Services, in accordance with Section
100171 of the Health and Safety Code.
SEC. 3. Section 652 of the Business and Professions Code is
amended to read:
652. Violation of this article in the case of a licensed person
constitutes unprofessional conduct and grounds for suspension or
revocation of his or her license by the board by whom he or she is
licensed, or if a license has been issued in connection with a place
of business, then for the suspension or revocation of the place of
business in connection with which the violation occurs. The
proceedings for suspension or revocation shall be conducted in
accordance with Chapter 5 (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code, and each board shall
have all the powers granted therein. However, in the case of a
licensee of the State Department of Health Services, the proceedings
shall be conducted in accordance with Section 110171 of the Health
and Safety Code. In addition, any violation constitutes a
misdemeanor as to any and all persons offering, delivering,
receiving, accepting, or participating in any rebate, refund,
commission, preference, patronage dividend, unearned discount, or
consideration, whether or not licensed under this division, and is
punishable by imprisonment in the county jail not exceeding six
months, by a fine not exceeding two thousand five hundred dollars
($2,500), or by both the imprisonment and fine.
SEC. 4. Section 1247.66 of the Business and Professions Code is
amended to read:
1247.66. (a) The department may deny, suspend, or revoke the
certification of a hemodialysis technician if it finds that the
hemodialysis technician is not in compliance with this article, or
any regulations adopted by the department to administer this article.
(b) The department may deny, suspend, or revoke the certification
of a hemodialysis technician for any of the following causes:
(1) Unprofessional conduct, which includes incompetence or gross
negligence in carrying out his or her usual functions.
(2) Procuring a certificate by fraud, misrepresentation, or
mistake.
(3) Making or giving any false statement or information in
conjunction with the application for issuance or renewal of a
certificate.
(4) Conviction of a crime substantially related to the
qualifications, functions, and duties of a hemodialysis technician in
which event the record of the conviction shall be conclusive
evidence thereof.
(c) In addition to other acts constituting unprofessional conduct
within the meaning of this article, all of the following constitute
unprofessional conduct:
(1) Conviction for, or use of, any narcotic drug, as defined in
Division 10 (commencing with Section 11000) of the Health and Safety
Code, or any dangerous drug, as defined in Article 7 (commencing with
Section 4211) of Chapter 9, or alcoholic beverages, to an extent or
in a manner dangerous or injurious to the hemodialysis technician or
any other person, or the public, to the extent that this use impairs
the ability to conduct, with safety to the public, the practice of a
hemodialysis technician.
(2) Abuse, whether verbal, physical, or mental, of a patient in
any setting where health care is being rendered.
(d) Proceedings to deny, suspend, or revoke a certification under
this article shall be conducted in accordance with Section 100171 of
the Health and Safety Code.
(e) This section shall become inoperative on July 1, 1999, and, as
of January 1, 2000, is repealed, unless a later enacted statute,
which becomes effective on or before January 1, 2000, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 5. Section 1267 of the Business and Professions Code is
amended to read:
1267. Any denial, suspension, or revocation of a license under
this chapter shall be conducted in compliance with Section 100171 of
the Health and Safety Code.
SEC. 6. Section 1310 of the Business and Professions Code is
amended to read:
1310. If the department determines that a laboratory that has
been issued a license or registration under this chapter, except for
a laboratory only performing tests or examinations classified as
waived under CLIA, no longer substantially meets the requirements of
this chapter or the regulations adopted thereunder, the department,
in lieu of, or in addition to, revocation or suspension of the
license or registration under Section 1320 or 1323, may impose any of
the following:
(a) Directed plans of correction, as defined under CLIA.
(b) Civil money penalties in an amount ranging from fifty dollars
($50) to three thousand dollars ($3,000) per day of noncompliance, or
per violation, for a condition level deficiency that does not pose
immediate jeopardy, to an amount ranging from three thousand fifty
dollars ($3,050) to ten thousand dollars ($10,000) per day of
noncompliance, or per violation, for a condition level deficiency
that poses immediate jeopardy, but only after notice and an
opportunity to respond in accordance with Section 100171 of the
Health and Safety Code, and consideration of facts enumerated in CLIA
in Section 493.1834 of Title 42 of the Code of Federal Regulations.
(c) Onsite monitoring, as defined under CLIA, and payment for the
costs of onsite monitoring.
(d) Any combination of the actions described in subdivisions (a),
(b), and (c).
SEC. 7. Section 1322 of the Business and Professions Code is
amended to read:
1322. The proceedings under this chapter for the suspension or
revocation of a license or registration shall be conducted in
accordance with Section 100171 of the Health and Safety Code.
SEC. 8. Section 22958 of the Business and Professions Code is
amended to read:
22958. (a) The state department may assess civil penalties
against any person, firm, or corporation that sells, gives, or in any
way furnishes to another person who is under the age of 18 years,
any tobacco, cigarette, or cigarette papers, or any other instrument
or paraphernalia that is designed for the smoking or ingestion of
tobacco, products prepared from tobacco, or any controlled substance,
according to the following schedule: (1) a civil penalty of from
two hundred dollars ($200) to three hundred dollars ($300) for the
first violation, (2) a civil penalty of from six hundred dollars
($600) to nine hundred dollars ($900) for the second violation within
a five-year period, (3) a civil penalty of from one thousand two
hundred dollars ($1,200) to one thousand eight hundred dollars
($1,800) for a third violation within a five-year period, (4) a civil
penalty of from three thousand dollars ($3,000) to four thousand
dollars ($4,000) for a fourth violation within a five-year period, or
(5) a civil penalty of from five thousand dollars ($5,000) to six
thousand dollars ($6,000) for a fifth or subsequent violation within
a five-year period.
(b) The state department shall assess penalties in accordance with
the schedule set forth in subdivision (a) against any person, firm,
or corporation that sells, offers for sale, or distributes tobacco
products from a cigarette or tobacco products vending machine, or any
person, firm, or corporation that leases, furnishes, or services
these machines in violation of Section 22960.
(c) If a civil penalty has been assessed pursuant to this section
against any person, firm, or corporation for a single, specific
violation of this division, the person, firm, or corporation shall
not be prosecuted under Section 308 of the Penal Code for a violation
based on the same facts or specific incident for which the civil
penalty was assessed. If any person, firm, or corporation has been
prosecuted for a single, specific violation of Section 308 of the
Penal Code, the person, firm, or corporation shall not be assessed a
civil penalty under this section based on the same facts or specific
incident upon which the prosecution under Section 308 of the Penal
Code was based.
(d) (1) In the case of a corporation or business with more than
one retail location, to determine the number of accumulated
violations for purposes of the penalty schedule set forth in
subdivision (a), violations of this division by one retail location
shall not be accumulated against other retail locations of that same
corporation or business.
(2) In the case of a retail location that operates pursuant to a
franchise as defined in Section 20001, violations of this division
accumulated and assessed against a prior owner of a single franchise
location shall not be accumulated against a new owner of the same
single franchise location for purposes of the penalty schedule set
forth in subdivision (a).
(e) Proceedings under this section shall be conducted in
accordance with Section 100171 of the Health and Safety Code.
SEC. 9. Section 11410.60 is added to the Government Code, to read:
11410.60. (a) As used in this section, "quasi-public entity"
means an entity, other than a governmental agency, whether
characterized by statute as a public corporation, public
instrumentality, or otherwise, that is expressly created by statute
for the purpose of administration of a state function.
(b) This chapter applies to an adjudicative proceeding conducted
by a quasi-public entity if all of the following conditions are
satisfied:
(1) A statute vests the power of decision in the quasi-public
entity.
(2) A statute, the United States Constitution, or the California
Constitution, requires an evidentiary hearing for determination of
facts for formulation and issuance of the decision. Nothing in this
section is intended to create an evidentiary hearing requirement that
is not otherwise statutorily or constitutionally imposed.
(3) The decision is not otherwise subject to administrative review
in an adjudicative proceeding to which this chapter applies.
(c) For the purpose of application of this chapter to a decision
by a quasi-public entity:
(1) "Agency," as defined in Section 11405.30, also includes the
quasi-public entity.
(2) "Regulation" includes a rule promulgated by the quasi-public
entity.
(3) Article 8 (commencing with Section 11435.05), requiring
language assistance in an adjudicative proceeding, applies to a
quasi-public entity to the same extent as a state agency under
Section 11018.
(d) This section shall be strictly construed to effectuate the
intent of the Legislature to apply this chapter only to a decision by
a quasi-public entity that is expressly created by statute for the
purpose of administration of a state function.
(e) This section shall not apply to a decision made on authority
of an approved plan of operations of a quasi-public entity that is
subject to the regulation or supervision of the Insurance
Commissioner.
SEC. 10. Section 1280 of the Health and Safety Code is amended to
read:
1280. (a) The state department may provide consulting services
upon request to any health facility to assist in the identification
or correction of deficiencies or the upgrading of the quality of care
provided by the health facility.
(b) The state department shall notify the health facility of all
deficiencies in its compliance with this chapter and the rules and
regulations adopted hereunder, and the health facility shall agree
with the state department upon a plan of correction that shall give
the health facility a reasonable time to correct these deficiencies.
If at the end of the allotted time, as revealed by inspection, the
health facility has failed to correct the deficiencies, the director
may take action to revoke or suspend the license.
(c) (1) In addition to subdivision (a), if the health facility is
licensed under subdivision (a), (b), or (f) of Section 1250, and if
the facility fails to implement a plan of correction that has been
agreed upon by both the facility and the state department within a
reasonable time, the state department may order implementation of the
plan of correction previously agreed upon by the facility and the
state department. If the facility and the state department fail to
agree upon a plan of correction within a reasonable time and if the
deficiency poses an immediate and substantial hazard to the health or
safety of patients, then the director may take action to order
implementation of a plan of correction devised by the state
department. The order shall be in writing and shall contain a
statement of the reasons for the order. If the facility does not
agree that the deficiency poses an immediate and substantial hazard
to the health or safety of patients or if the facility believes that
the plan of correction will not correct the hazard, or if the
facility proposes a more efficient or effective means of remedying
the deficiency, the facility may, within 10 days of receiving the
plan of correction from the department, appeal the order to the
director. The director shall review information provided by the
facility, the department, and other affected parties and within a
reasonable time render a decision in writing that shall include a
statement of reasons for the order. During the period which the
director is reviewing the appeal, the order to implement the plan of
correction shall be stayed. The opportunity for appeal provided
pursuant to this subdivision shall not be deemed to be an
adjudicative hearing and is not required to comply with Section
100171.
(2) If any condition within a health facility licensed under
subdivision (a), (b), or (f) of Section 1250 poses an immediate and
substantial hazard to the health or safety of patients, the state
department may order either of the following until the hazardous
condition is corrected:
(A) Reduction in the number of patients.
(B) Closure of the unit or units within the facility that pose the
risk. If the unit to be closed is an emergency room in a designated
facility, as defined in Section 1797.67, the state department shall
notify and coordinate with the local emergency medical services
agency.
(3) The facility may appeal an order pursuant to paragraph (2) by
appealing to the superior court of the county in which the facility
is located.
(4) Paragraph (2) shall not apply to a deficiency for which the
facility was cited prior to January 1, 1994.
(d) Reports on the results of each inspection of a health facility
shall be prepared by the inspector or inspector team and shall be
kept on file in the state department along with the plan of
correction and health facility comments. The inspection report may
include a recommendation for reinspection. Inspection reports of an
intermediate care facility/developmentally disabled habilitative or
an intermediate care facility/developmentally disabled--nursing shall
be provided by the state department to the appropriate regional
center pursuant to Chapter 5 (commencing with Section 4620) of
Division 4.5 of the Welfare and Institutions Code.
(e) All inspection reports and lists of deficiencies shall be open
to public inspection when the state department has received
verification that the health facility has received the report from
the state department. All plans of correction shall be open to
public inspection upon receipt by the state department.
(f) In no event shall the act of providing a plan of correction,
the content of the plan of correction, or the execution of a plan of
correction, be used in any legal action or administrative proceeding
as an admission within the meaning of Sections 1220 to 1227,
inclusive, of the Evidence Code against the health facility, its
licensee, or its personnel.
SEC. 11. Section 1280.1 of the Health and Safety Code is amended
to read:
1280.1. (a) If a licensee of a health facility licensed under
subdivision (a), (b), or (f) of Section 1250 fails to correct a
deficiency within the time specified in a plan of correction, the
state department may assess the licensee a civil penalty in an amount
not to exceed fifty dollars ($50) per patient affected by the
deficiency for each day that the deficiency continues beyond the date
specified for correction. The civil penalties shall be assessed
only for deficiencies that pose an immediate and substantial hazard
to the health or safety of patients. If the licensee disputes a
determination by the state department regarding alleged failure to
correct a deficiency or regarding the reasonableness of the proposed
deadline for correction, the licensee may, within 10 days, request a
hearing pursuant to Section 100171. Penalties shall be paid when
appeals pursuant to those provisions have been exhausted.
(b) This section shall not apply to a deficiency for which a
facility was cited prior to January 1, 1994.
SEC. 12. Section 1295 of the Health and Safety Code is amended to
read:
1295. Proceedings for the suspension, revocation, or denial of
licenses or special permits under this chapter shall be conducted in
accordance with Section 100171. In the event of conflict between
this chapter and Section 100171, Section 100171 shall prevail.
SEC. 13. Section 1337.9 of the Health and Safety Code is amended
to read:
1337.9. (a) The state department may deny an application for, or
initiate an action to suspend or revoke, a nurse assistant, or deny a
training and examination application.
(b) The state department shall deny a training and examination
application and deny, suspend, or revoke a certificate issued under
this article if the applicant or certificate holder has been
convicted of a violation or attempted violation of any one or more of
the following Penal Code provisions: Section 187, subdivision (a)
of Section 192, Section 203, 205, 206, 207, 209, 210, 210.5, 211,
220, 222, 243.4, 245, 261, 262, or 264.1, Sections 265 to 267,
inclusive, Section 273a, 273.5, or 285, subdivisions (c), (d), (f),
and (g) of Section 286, Section 288, subdivisions (c), (d), (f), and
(g) of Section 288a, Section 288.5, 289, 289.5, 368, 451, 459, 470,
475, 484, or 484b, Sections 484d to 484j, inclusive, Section 487,
503, or 518, unless any of the following applies:
(1) The person was convicted of a felony and has obtained a
certificate of rehabilitation under Chapter 3.5 (commencing with
Section 4852.01) of Title 6 of the Penal Code and the information or
accusation against him or her has been dismissed pursuant to Section
1203.4 of the Penal Code.
(2) The person was convicted of a misdemeanor and the information
or accusation against him or her has been dismissed pursuant to
Section 1203.4 or 1203.4a of the Penal Code.
(3) The certificate holder was convicted of a felony or a
misdemeanor, but has previously disclosed the fact of each conviction
to the department, and the department has made a determination in
accordance with law that the conviction does not disqualify the
applicant from certification.
(c) An application or certificate shall be denied, suspended, or
revoked upon conviction in another state of an offense that, if
committed or attempted in this state, would have been punishable as
one or more of the offenses set forth in subdivision (b), unless
evidence of rehabilitation comparable to the certificate of
rehabilitation or dismissal of a misdemeanor set forth in paragraph
(1) or (2) of subdivision (b) is provided.
(d) The state department may deny an application or deny, suspend,
or revoke a certificate issued under this article for any of the
following:
(1) Unprofessional conduct, including, but not limited to,
incompetence, gross negligence unless due to circumstances beyond the
nurse assistant's control, physical, mental, or verbal abuse of
patients or misappropriation of property of patients or others.
(2) Conviction of a crime substantially related to the
qualifications, functions, and duties of a certified nurse assistant,
irrespective of a subsequent order under Section 1203.4, 1203.4a, or
4852.13 of the Penal Code, where the state department determines
that the applicant or certificate holder has not adequately
demonstrated that he or she has been rehabilitated and will present a
threat to the health, safety, or welfare of patients.
(3) Conviction for, or use of, any controlled substance as defined
in Division 10 (commencing with Section 11000), or any dangerous
drug, as defined in Article 7 (commencing with Section 4211) of
Chapter 9, or alcoholic beverages, to an extent or in a manner
dangerous or injurious to the certified nurse assistant, any other
person, or the public, to the extent that this use would impair the
ability to conduct, with safety to the public, the practice
authorized by a certificate.
(4) Procuring a certified nurse assistant certificate by fraud or
misrepresentation or mistake.
(5) Making or giving any false statement or information in
conjunction with the application for issuance of a nurse assistant
certificate or training and examination application.
(6) Impersonating any applicant, or acting as proxy for an
applicant, in any examination required under this article for the
issuance of a certificate.
(7) Impersonating another certified nurse assistant, a licensed
vocational nurse, or a registered nurse, or permitting or allowing
another person to use a certificate for the purpose of providing
nursing services.
(8) Violating or attempting to violate, directly or indirectly, or
assisting in or abetting the violating of, or conspiring to violate
any provision or term of, this article.
(e) When the state department determines that a certificate shall
be suspended, the state department shall specify the period of actual
suspension. The state department may determine that the suspension
shall be stayed, placing the certificate holder on probation with
specified conditions for a period not to exceed two years. When the
state department determines that probation is the appropriate action,
the certificate holder shall be notified that in lieu of the state
department proceeding with a formal action to suspend the
certification and in lieu of an appeal pursuant to subdivision (h),
the certificate holder may request to enter into a diversion program
agreement. A diversion program agreement shall specify terms and
conditions related to matters, including, but not limited to, work
performance, rehabilitation, training, counseling, progress reports,
and treatment programs. If a certificate holder successfully
completes a diversion program, no action shall be taken upon the
allegations that were the basis for the diversion agreement. Upon
failure of the certificate holder to comply with the terms and
conditions of an agreement, the state department may proceed with a
formal action to suspend or revoke the certification.
(f) A plea or verdict of guilty, or a conviction following a plea
of nolo contendere shall be deemed a conviction within the meaning of
this article. The
state department may deny an application or deny, suspend, or revoke
a certification based on a conviction as provided in this article
when the judgment of conviction is entered or when an order granting
probation is made suspending the imposition of sentence.
(g) Upon determination to deny an application or deny, revoke, or
suspend a certificate, the state department shall notify the
applicant or certificate holder in writing by certified mail of all
of the following:
(1) The reasons for the determination.
(2) The applicant's or certificate holder's right to appeal the
determination if the determination was made under subdivision (d).
(h) (1) Upon written notification that the state department has
determined that an application shall be denied or a certificate shall
be denied, suspended, or revoked under subdivision (d), the
applicant or certificate holder may request an administrative hearing
by submitting a written request to the state department within 20
business days of receipt of the written notification. Upon receipt
of a written request, the state department shall hold an
administrative hearing pursuant to the procedures specified in
Section 100171, except where those procedures are inconsistent with
this section.
(2) A hearing under this section shall be conducted by a hearing
officer or administrative law judge designated by the director at a
location, other than the work facility, convenient to the applicant
or certificate holder. The hearing shall be tape recorded and a
written decision shall be sent by certified mail to the applicant or
certificate holder within 30 calendar days of the hearing. Except as
specified in subdivision (i), the effective date of an action to
revoke or suspend a certificate shall be specified in the written
decision, or if no administrative hearing is timely requested, the
effective date will be 21 business days from written notification of
the department's determination to revoke or suspend.
(i) The state department may revoke or suspend a certificate prior
to any hearing when immediate action is necessary in the judgment of
the director to protect the public welfare. Notice of this action,
including a statement of the necessity of immediate action to protect
the public welfare, shall be sent in accordance with subdivision
(g). If the certificate holder requests an administrative hearing
pursuant to subdivision (h), the state department shall hold the
administrative hearing as soon as possible but not later than 30
calendar days from receipt of the request for a hearing. A written
hearing decision upholding or setting aside the action shall be sent
by certified mail to the certificate holder within 30 calendar days
of the hearing.
(j) Upon the expiration of the term of suspension, he or she shall
be reinstated by the state department and shall be entitled to
resume practice unless it is established to the satisfaction of the
state department that the person has practiced as a certified nurse
assistant in this state during the term of suspension. In this
event, the state department shall revoke the person's certificate.
(k) Upon a determination to deny an application or deny, revoke,
or suspend a certificate, the state department shall notify the
employer of the applicant or certificate holder in writing of that
determination, and whether the determination is final, or whether a
hearing is pending relating to this determination. If a licensee or
facility is required to deny employment or terminate employment of
the employee based upon notice from the state that the employee is
determined to be unsuitable for employment under this section, the
licensee or facility shall not incur criminal, civil, unemployment
insurance, workers' compensation, or administrative liability as a
result of that denial or termination.
SEC. 14. Section 1408 of the Health and Safety Code is amended to
read:
1408. (a) Upon verification of compliance with this chapter and
with the approval of the department, the department shall issue the
license to the applicant.
(b) If the applicant is not in compliance with this chapter, the
department shall deny the applicant a license. Immediately upon the
denial of any license, the department shall notify the applicant in
writing. Within 20 days of receipt of the department's notice, the
applicant may present his or her written petition for a hearing to
the department. The proceedings shall be conducted in accordance
with Section 100171.
SEC. 15. Section 1410 of the Health and Safety Code is amended to
read:
1410. The department may suspend or revoke licenses issued under
this chapter for violation of any provisions of this chapter or rules
and regulations promulgated hereunder. In addition, the department
shall assess a civil penalty in the amount of fees received by a
licensee as a result of a violation of any provisions of this chapter
or rules and regulations promulgated hereunder. Proceedings to
suspend or revoke a license shall be conducted pursuant to Section
100171.
SEC. 16. Section 1428 of the Health and Safety Code is amended to
read:
1428. (a) If the licensee desires to contest a citation or the
proposed assessment of a civil penalty therefor, the licensee shall
use the processes described in subdivisions (b) and (c) for classes
"AA," "A," or "B" citations. As a result of a citation review
conference, a citation or the proposed assessment of a civil penalty
may be affirmed, modified, or dismissed by the director or the
director's designee. If the director's designee affirms, modifies,
or dismisses the citation or proposed assessment of a civil penalty,
he or she shall state with particularity in writing his or her
reasons for that action, and shall immediately transmit a copy
thereof to each party to the original complaint. If the licensee
desires to contest a decision made after the citation review
conference, the licensee shall inform the director in writing within
15 business days after he or she receives the decision by the
director's designee.
(b) If a licensee notifies the director that he or she intends to
contest a class "AA" or a class "A" citation, the licensee may first
within 15 business days after service of the citation notify the
director in writing of his or her request for a citation review
conference. The licensee shall inform the director in writing,
within 15 business days of the service of the citation or the receipt
of the decision of the director's designee after the citation review
conference, of the licensee's intent to adjudicate the validity of
the citation in the municipal or superior court in the county in
which the long-term health care facility is located. In order to
perfect a judicial appeal of a contested citation, a licensee shall
file a civil action in the municipal or superior court in the county
in which the long-term health care facility is located. The action
shall be filed no later than 90 calendar days after a licensee
notifies the director that he or she intends to contest the citation,
or no later than 90 days after the receipt of the decision by the
director's designee after the citation review conference, and served
not later than 90 days after filing. Notwithstanding any other
provision of law, for those citations issued after January 1, 1993, a
licensee prosecuting a judicial appeal shall file and serve an
at-issue memorandum pursuant to Rule 209 of the California Rules of
Court by July 1, 1993, or within six months after the state
department files its answer in the appeal, whichever is later.
Notwithstanding subdivision (d), the court shall dismiss the appeal
upon motion of the state department if the at-issue memorandum is not
filed by the facility within the period specified.
(c) If a licensee desires to contest a class "B" citation, the
licensee may request, within 15 business days after service of the
citation, a citation review conference, by writing the director or
the director's designee of the licensee's intent to appeal the
citation through the citation review conference. If the licensee
wishes to appeal the citation which has been upheld in a citation
review conference, the licensee shall, within 15 working days from
the date the citation review conference decision was rendered, notify
the director or the director's designee that he or she wishes to
appeal the decision through the procedures set forth in Section
100171. The administrative law judge may affirm, modify, or dismiss
the citation or the proposed assessment of a civil penalty. The
licensee may choose to have his or her appeal heard by the
administrative law judge without having first appealed the decision
to a citation review conference by notifying the director in writing
within 15 business days of the service of the citation.
(d) If a licensee is dissatisfied with the decision of the
administrative law judge, the licensee may, in lieu of seeking
judicial review of the decision as provided in Section 1094.5 of the
Code of Civil Procedure, elect to submit the matter to binding
arbitration by filing, within 60 days of its receipt of the decision,
a request for arbitration with the American Arbitration Association.
The parties shall agree upon an arbitrator designated from the
American Arbitration Association in accordance with the association's
established rules and procedures. The arbitration hearing shall be
set within 45 days of the election to arbitrate, but in no event less
than 28 days from the date of selection of an arbitrator. The
arbitration hearing may be continued up to 15 additional days if
necessary at the arbitrator's discretion. Except as otherwise
specifically provided in this subdivision, the arbitration hearing
shall be conducted in accordance with the American Arbitration
Association's established rules and procedures.
(e) If an appeal is prosecuted under this section, including an
appeal taken in accordance with Section 100171 the state department
shall have the burden of establishing by a preponderance of the
evidence that (1) the alleged violation did occur, (2) the alleged
violation met the criteria for the class of citation alleged, and (3)
the assessed penalty was appropriate. The state department shall
also have the burden of establishing by a preponderance of the
evidence that the assessment of a civil penalty should be upheld. If
a licensee fails to notify the director in writing that he or she
intends to contest the citation, or the proposed assessment of a
civil penalty therefor, or the decision made by the director's
designee, after a citation review conference, within the time
specified in this section, the decision by the director's designee
after a citation review conference shall be deemed a final order of
the state department and shall not be subject to further
administrative review, except that the licensee may seek judicial
relief from the time limits specified in this section. If a licensee
appeals a contested citation or the assessment of a civil penalty,
no civil penalty shall be due and payable unless and until the appeal
is terminated in favor of the state department.
(f) The director or the director's designee shall establish an
independent unit of trained citation review conference hearing
officers within the state department to conduct citation review
conferences. Citation review conference hearing officers shall be
directly responsible to the deputy director for licensing and
certification, and shall not be concurrently employed as supervisors,
district administrators, or regional administrators with the
licensing and certification division. Specific training shall be
provided to members of this unit on conducting an informal
conference, with emphasis on the regulatory and legal aspects of
long-term health care.
Where the state department issues a citation as a result of a
complaint or regular inspection visit, and a resident or residents
are specifically identified in a citation by name as being
specifically affected by the violation, then the following persons
may attend the citation review conference:
(1) The complainant and his or her designated representative.
(2) A personal health care provider, designated by the resident.
(3) A personal attorney, only if the long-term health care
facility has an attorney present.
(4) Any person representing the Office of the State Long-Term Care
Ombudsman, as defined in subdivision (c) of Section 9701 of the
Welfare and Institutions Code.
Where the state department determines that residents in the
facility were threatened by the cited violation but does not name
specific residents, any person representing the Office of the State
Long-Term Care Ombudsman, as defined in subdivision (c) of Section
9701 of the Welfare and Institutions Code, and a representative of
the residents or family council at the facility may participate to
represent all residents. In this case, these representatives shall
be the sole participants for the residents in the conference. The
residents' council shall designate which representative will
participate.
The complainant, affected resident, or their designated
representatives shall be notified by the state department of the
conference and their right to participate. The director's designee
shall notify the complainant or his or her designated representative
and the affected resident or his or her designated representative, of
his or her determination based on the citation review conference.
(g) In assessing the civil penalty for a violation, all relevant
facts shall be considered, including, but not limited to, all of the
following:
(1) The probability and severity of the risk which the violation
presents to the patient's or resident's mental and physical
condition.
(2) The patient's or resident's medical condition.
(3) The patient's or resident's mental condition and his or her
history of mental disability.
(4) The good faith efforts exercised by the facility to prevent
the violation from occurring.
(5) The licensee's history of compliance with regulations.
(h) Except as otherwise provided in this subdivision, an
assessment of civil penalties for a class "A" or class "B" violation
shall be trebled and collected for a second and subsequent violation
for which a citation of the same class was issued within any 12-month
period. Trebling shall occur only if the first citation issued
within the 12-month period was issued in the same class, a civil
penalty was assessed, and a plan of correction was submitted for the
previous same-class violation occurring within the period, without
regard to whether the action to enforce the previous citation has
become final. However, the increment to the civil penalty required
by this subdivision shall not be due and payable unless and until the
previous action has terminated in favor of the state department.
If the class "B" citation is issued for a patient's rights
violation, as defined in subdivision (d) of Section 1424, it shall
not be trebled unless the state department determines the violation
has a direct or immediate relationship to the health, safety,
security, or welfare of long-term health care facility residents.
(i) The director shall prescribe procedures for the issuance of a
notice of violation with respect to violations having only a minimal
relationship to safety or health.
(j) Actions brought under this chapter shall be set for trial at
the earliest possible date and shall take precedence on the court
calendar over all other cases except matters to which equal or
superior precedence is specifically granted by law. Times for
responsive pleading and for hearing the proceeding shall be set by
the judge of the court with the object of securing a decision as to
subject matters at the earliest possible time.
(k) If the citation is dismissed, the state department shall take
action immediately to ensure that the public records reflect in a
prominent manner that the citation was dismissed.
(l) Penalties paid on violations under this chapter shall be
applied against the state department's accounts to offset any costs
incurred by the state pursuant to this chapter. Any costs or
penalties assessed pursuant to this chapter shall be paid within 30
days of the date the decision becomes final. If a facility does not
comply with this requirement, the state department shall withhold any
payment under the Medi-Cal program until the debt is satisfied. No
payment shall be withheld if the state department determines that it
would cause undue hardship to the facility or to patients or
residents of the facility.
(m) The amendments made to subdivisions (a) and (c) of this
section by Chapter 84 of the Statutes of 1988, to extend the number
of days allowed for the provision of notification to the director, do
not affect the right, that is also contained in those amendments, to
request judicial relief from these time limits.
SEC. 17. Section 1437 of the Health and Safety Code is amended to
read:
1437. If a health facility, or an applicant for a license has not
been previously licensed pursuant to Chapter 2 (commencing with
Section 1250), the state department may only provisionally license
the facility as provided in this section. A provisional license to
operate a health facility shall terminate six months from the date of
issuance. Within 30 days of the termination of a provisional
license, the state department shall give the facility a full and
complete inspection, and, if the facility meets all applicable
requirements for licensure, a regular license shall be issued. If
the health facility does not meet the requirements for licensure but
has made substantial progress towards meeting the requirements, as
determined by the state department, the initial provisional license
shall be renewed for six months. If the state department determines
that there has not been substantial progress towards meeting
licensure requirements at the time of the first full inspection
provided by this section, or, if the state department determines upon
its inspection made within 30 days of the termination of a renewed
provisional license that there is lack of full compliance with the
requirements, no further license shall be issued.
If an applicant for a provisional license to operate a health
facility has been denied provisional licensing by the state
department, he or she may contest the denial by filing a request for
a hearing pursuant to Section 100171.
The department shall not apply less stringent criteria when
granting a provisional license pursuant to this section than it
applies when granting a permanent license.
General acute care hospitals and acute psychiatric hospitals are
exempt from this section.
SEC. 18. Section 1615 of the Health and Safety Code is amended to
read:
1615. (a) A license shall be automatically revoked when there is
a change of address, ownership, or person in charge of biologics
production. However, a new license may be secured for the new
location, owner, or person in charge prior to the actual change if
the contemplated change is in compliance with all the provisions of
this chapter and regulations pertaining thereto.
(b) Proceedings for denial of license shall be conducted in
accordance with Section 100171.
SEC. 19. Section 1618 of the Health and Safety Code is amended to
read:
1618. (a) Licenses shall be suspended or revoked by the
department for the violation of any provision of this chapter, or of
any rule or regulation made by the department under authority
conferred by this chapter. The proceedings shall be conducted in
accordance with Section 100171.
(b) Licenses may be denied for any reason applicable to revocation
and suspension of licenses.
(c) District and city attorneys shall prosecute violations of this
chapter upon evidence of violations within their respective
jurisdictions submitted by the department.
SEC. 20. Section 1639.4 of the Health and Safety Code is amended
to read:
1639.4. Immediately upon the denial of any application for a
license, the state department shall notify the applicant in writing.
Within 20 days after the state department mails the notice, the
applicant may present a written petition for a hearing to the state
department. Upon receipt by the state department of the petition in
proper form, the petition shall be set for hearing. The proceedings
shall be conducted in accordance with Section 100171.
SEC. 21. Section 1643.1 of the Health and Safety Code is amended
to read:
1643.1. Proceedings for the suspension or revocation of licenses
under this chapter shall be conducted in accordance with Section
100171.
SEC. 22. Section 1728.2 of the Health and Safety Code is amended
to read:
1728.2. (a) If a home health agency or an applicant for a license
has not been previously licensed, the state department may only
issue a provisional license to the agency as provided in this
section.
(b) A provisional license to operate a home health agency shall
terminate six months from the date of issuance.
(c) Within 30 days prior to the termination of a provisional
license, the state department shall give the agency a full and
complete inspection, and, if the agency meets all applicable
requirements for licensure, a regular license shall be issued. If
the home health agency does not meet the requirements for licensure
but has made substantial progress towards meeting the requirements,
as determined by the state department, the initial provisional
license shall be renewed for six months.
(d) If the state department determines that there has not been
substantial progress towards meeting licensure requirements at the
time of the first full inspection provided by this section, or, if
the state department determines upon its inspection made within 30
days of the termination of a renewed provisional license that there
is lack of full compliance with the requirements, no further license
shall be issued.
(e) If an applicant for a provisional license to operate a home
health agency has been denied provisional licensing by the state
department, the applicant may contest the denial by filing a request
for a hearing pursuant to Section 100171.
(f) The department shall not apply less stringent criteria when
granting a provisional license pursuant to this section than it
applies when granting a permanent license.
SEC. 23. Section 1736 of the Health and Safety Code is amended to
read:
1736. Proceedings for the denial, suspension or revocation of
licenses or denial or withdrawal of approval under this chapter shall
be conducted in accordance with Section 100171.
The suspension, expiration, or forfeiture by operation of law of a
license issued by the state department; its suspension, forfeiture,
or cancellation by order of the state department or by order of a
court of law; or its surrender without the written consent of the
state department, shall not deprive the state department of its
authority to institute or continue a disciplinary proceeding against
the licensee upon any ground provided by law or to enter an order
suspending or revoking the license or otherwise taking disciplinary
action against the licensee on any such ground.
SEC. 24. Section 1736.5 of the Health and Safety Code is amended
to read:
1736.5. (a) The state department shall deny a training
application and deny, suspend, or revoke a certificate issued under
this article if the applicant or certificate holder has been
convicted of a violation or attempted violation of any of the
following Penal Code provisions: Section 187, subdivision (a) of
Section 192, Section 203, 205, 206, 207, 209, 210, 210.5, 211, 220,
222, 243.4, 245, 261, 262, or 264.1, Sections 265 to 267, inclusive,
Section 273a, 273.5, or 285, subdivisions (c), (d), (f), and (g) of
Section 286, Section 288, subdivisions (c), (d), (f), and (g) of
Section 288a, Section 288.5, 289, 289.5, 368, 451, 459, 470, 475,
484, or 484b, Sections 484d to 484j, inclusive, Section 487, 503, or
518, unless any of the following apply:
(1) The person was convicted of a felony and has obtained a
certificate of rehabilitation under Chapter 3.5 (commencing with
Section 4852.01) of Title 6 of the Penal Code and the information or
accusation against him or her has been dismissed pursuant to Section
1203.4 of the Penal Code.
(2) The person was convicted of a misdemeanor and the information
or accusation against him or her has been dismissed pursuant to
Section 1203.4 or 1203.4a of the Penal Code.
(3) The certificate holder was convicted of a felony or a
misdemeanor, but has previously disclosed the fact of each conviction
to the department, and the department has made a determination in
accordance with law that the conviction does not disqualify the
applicant from certification.
(b) An application or certificate shall be denied, suspended, or
revoked upon conviction in another state of an offense that, if
committed or attempted in this state, would have been punishable as
one or more of the offenses set forth in subdivision (a), unless
evidence of rehabilitation comparable to the certificate of
rehabilitation or dismissal of a misdemeanor set forth in paragraph
(1) or (2) of subdivision (a) is provided.
(c) The state department may deny an application or deny, suspend,
or revoke a certificate issued under this article for any of the
following:
(1) Unprofessional conduct, including, but not limited to,
incompetence, gross negligence, physical, mental, or verbal abuse of
patients, or misappropriation of property of patients or others.
(2) Conviction of a crime substantially related to the
qualifications, functions, and duties of a home health aide,
irrespective of a subsequent order under Section 1203.4, 1203.4a, or
4852.13 of the Penal Code, where the state department determines that
the applicant or certificate holder has not adequately demonstrated
that he or she has been rehabilitated and will present a threat to
the health, safety, or welfare of patients.
(3) Conviction for, or use of, any controlled substance as defined
in Division 10 (commencing with Section 11000), or any dangerous
drug, as defined in Article 7 (commencing with Section 4211) of
Chapter 9, or alcoholic beverages, to an extent or in a manner
dangerous or injurious to the home health aide, any other person, or
the public, to the extent that this use would impair the ability to
conduct, with safety to the public, the practice authorized by a
certificate.
(4) Procuring a home health aide certificate by fraud,
misrepresentation, or mistake.
(5) Making or giving any false statement
or information in conjunction with the application for issuance of a
home health aide certificate or training and examination
application.
(6) Impersonating any applicant, or acting as proxy for an
applicant, in any examination required under this article for the
issuance of a certificate.
(7) Impersonating another home health aide, a licensed vocational
nurse, or a registered nurse, or permitting or allowing another
person to use a certificate for the purpose of providing nursing
services.
(8) Violating or attempting to violate, directly or indirectly, or
assisting in or abetting the violation of, or conspiring to violate
any provision or term of, this article.
(d) When the state department determines that a certificate shall
be suspended, the state department shall specify the period of actual
suspension. The state department may determine that the suspension
shall be stayed, placing the certificate holder on probation with
specified conditions for a period not to exceed two years. When the
state department determines that probation is the appropriate action,
the certificate holder shall be notified that in lieu of the state
department proceeding with a formal action to suspend the
certification and in lieu of an appeal pursuant to subdivision (g),
the certificate holder may request to enter into a diversion program
agreement. A diversion program agreement shall specify terms and
conditions related to matters, including, but not limited to, work
performance, rehabilitation, training, counseling, progress reports,
and treatment programs. If a certificate holder successfully
completes a diversion program, no action shall be taken upon the
allegations that were the basis for the diversion agreement. Upon
failure of the certificate holder to comply with the terms and
conditions of an agreement, the state department may proceed with a
formal action to suspend or revoke the certification.
(e) A plea or verdict of guilty, or a conviction following a plea
of nolo contendere, shall be deemed a conviction within the meaning
of this article. The state department may deny an application or
deny, suspend, or revoke a certification based on a conviction as
provided in this article when the judgment of conviction is entered
or when an order granting probation is made suspending the imposition
of sentence.
(f) Upon determination to deny an application or deny, revoke, or
suspend a certificate, the state department shall notify the
applicant or certificate holder in writing by certified mail of all
of the following:
(1) The reasons for the determination.
(2) The applicant's or certificate holder's right to appeal the
determination if the determination was made under subdivision (c).
(g) (1) Upon written notification that the state department has
determined that an application shall be denied or a certificate shall
be denied, suspended, or revoked under subdivision (c), the
applicant or certificate holder may request an administrative hearing
by submitting a written request to the state department within 20
business days of receipt of the written notification. Upon receipt
of a written request, the state department shall hold an
administrative hearing pursuant to procedures specified in Section
100171, except insofar as those procedures are inconsistent with this
section.
(2) A hearing under this section shall be conducted by a hearing
officer or administrative law judge designated by the director at a
location other than the work facility convenient to the applicant or
certificate holder. The hearing shall be tape recorded and a written
decision shall be sent by certified mail to the applicant or
certificate holder within 30 calendar days of the hearing. Except as
specified in subdivision (h), the effective date of an action to
revoke or suspend a certificate shall be specified in the written
decision, or if no administrative hearing is timely requested, the
effective date will be 21 business days from written notification of
the department's determination to revoke or suspend.
(h) The state department may revoke or suspend a certificate prior
to any hearing when immediate action is necessary in the judgment of
the director to protect the public welfare. Notice of this action,
including a statement of the necessity of immediate action to protect
the public welfare, shall be sent in accordance with subdivision
(f). If the certificate holder requests an administrative hearing
pursuant to subdivision (g), the state department shall hold the
administrative hearing as soon as possible but not later than 30
calendar days from receipt of the request for a hearing. A written
hearing decision upholding or setting aside the action shall be sent
by certified mail to the certificate holder within 30 calendar days
of the hearing.
(i) Upon the expiration of the term of suspension, he or she shall
be reinstated by the state department and shall be entitled to
resume practice unless it is established to the satisfaction of the
state department that the person has practiced as a home health aide
in California during the term of suspension. In this event, the
state department shall revoke the person's certificate.
(j) Upon a determination to deny an application or deny, revoke,
or suspend a certificate, the department shall notify the employer of
the applicant or certificate holder in writing of that
determination, and whether the determination is final, or whether a
hearing is pending relating to this determination. If a licensee or
facility is required to deny employment or terminate employment of
the employee based upon notice from the state that the employee is
determined to be unsuitable for employment under this section, the
licensee or facility shall not incur criminal, civil, unemployment
insurance, workers' compensation, or administrative liability as a
result of that denial or termination.
SEC. 25. Section 100171 is added to the Health and Safety Code, to
read:
100171. Notwithstanding any other provision of law, whenever the
department is authorized or required by statute, regulation, due
process (Fourteenth Amendment, United States Constitution;
subdivision (a) of Section 7 of Article I, California Constitution),
or a contract, to conduct an adjudicative hearing leading to a final
decision of the director or the department, the following shall
apply:
(a) The proceeding shall be conducted pursuant to the
administrative adjudication provisions of Chapter 4.5 (commencing
with Section 11400) and Chapter 5 (commencing with Section 11500) of
Part 1 of Division 3 of Title 2 of the Government Code, except as
specified in this section.
(b) Notwithstanding Section 11502 of the Government Code, whenever
the department conducts a hearing under Chapter 4.5 (commencing with
Section 11400) or Chapter 5 (commencing with Section 11500) of Part
1 of Division 3 of Title 2 of the Government Code, the hearing shall
be conducted before an administrative law judge selected by the
department and assigned to a hearing office that complies with the
procedural requirements of Chapter 4.5 (commencing with Section
11400) of Part 1 of Division 3 of Title 2 of the Government Code.
(c) Notwithstanding Section 11508 of the Government Code, whenever
the department conducts a hearing under Chapter 4.5 (commencing with
Section 11400) or Chapter 5 (commencing with Section 11500) of Part
1 of Division 3 of Title 2 of the Government Code, the time and place
of the hearing shall be determined by the staff assigned to the
hearing office of the department, unless the department by regulation
specifies otherwise.
(d) (1) The following sections of the Government Code shall apply
to any adjudicative hearing conducted by the department only if the
department has not, by regulation, specified an alternative procedure
for the particular type of hearing at issue: Section 11503
(relating to accusations), Section 11504 (relating to statements of
issues), Section 11505 (relating to the contents of the statement to
respondent), Section 11506 (relating to the notice of defense),
Section 11507.6 (relating to discovery rights and procedures),
Section 11508 (relating to the time and place of hearings), and
Section 11516 (relating to amendment of accusations).
(2) Any alternative procedure specified by the department in
accordance with this subdivision shall conform to the purpose of the
Government Code provision it replaces insofar as it is possible to do
so consistent with the specific procedural requirements applicable
to the type of hearing at issue.
(3) Any alternative procedures adopted by the department under
this subdivision shall not diminish the amount of notice given of the
issues to be heard by the department or deprive appellants of the
right to discovery suitable to the particular proceedings.
Modifications of timeframes or of the place of hearing made by
regulation may not lengthen timeframes within which the department is
required to act nor require hearings to be held at a greater
distance from the appellant's place of residence or business than is
the case under the otherwise applicable Government Code provision.
(e) The specific timelines specified in Section 11517 of the
Government Code shall not apply to any adjudicative hearing conducted
by the department to the extent that the department has, by
regulation, specified different timelines for the particular type of
hearing at issue.
(f) In the case of any adjudicative hearing conducted by the
department, "transcript," as used in subdivision (c) of Section 11517
of the Government Code, shall be deemed to include any alternative
form of recordation of the oral proceedings, including, but not
limited to, an audiotape.
(g) Pursuant to Section 11415.50 of the Government Code, the
department may, by regulation, provide for any appropriate informal
procedure to be used for an informal level of review that does not
itself lead to a final decision of the department or the director.
The procedures specified in Article 10 (commencing with Section
11445.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the
Government Code shall not apply to any such an informal level of
review.
(h) Notwithstanding any other provision of law, any adjudicative
hearing conducted by the department that is conducted pursuant to a
federal statutory or regulatory requirement that contains specific
procedures may be conducted pursuant to those procedures to the
extent they are inconsistent with the procedures specified in this
section.
(i) Nothing in this section shall apply to a fair hearing
involving a Medi-Cal beneficiary insofar as the hearing is, by
agreement or otherwise, heard before an administrative law judge
employed by the State Department of Social Services.
(j) Nothing in this provision shall supersede express provisions
of law that apply to any hearing that is not adjudicative in nature
or that does not involve due process rights specific to an individual
or specific individuals, as opposed to the general public or a
segment of the general public.
SEC. 26. Section 106715 of the Health and Safety Code is amended
to read:
106715. (a) Notwithstanding any other provisions of this article,
the department upon the recommendation of the committee may suspend,
deny, refuse to renew, or revoke a registration certificate issued
under this article after sufficient notice and an opportunity for a
hearing and upon findings that the registered environmental health
specialist has done any of the following:
(1) Knowingly made a false statement of fact required to be
revealed in the application for registration.
(2) Been convicted of a crime, if the crime is related to the
qualifications, functions, and duties of an environmental health
specialist.
(3) Knowingly made a false statement of fact required to be
revealed in an application for, or renewal of, registration.
(4) Committed an act of deceit, misrepresentation, violation of
contract, fraud, negligence, professional incompetence, or unethical
practice.
(b) The procedure to deny, suspend, refuse to renew, or revoke an
environmental health specialist registration certificate pursuant to
this section shall be as follows:
(1) All cases, complaints, or allegations charging a violation of
this subdivision shall be made in writing and submitted to the
department.
(2) The department shall make a preliminary investigation by:
(A) Obtaining copies of all pertinent written documents (laws,
reports, contacts, and correspondence).
(B) Interviewing, in person or by telephone, of all individuals
involved with the issue.
(3) The department shall compile the information into a
confidential case document that includes the following:
(A) A description of the complaint.
(B) A chronology of events.
(C) Results of the interviews.
(D) Copies of the written documents.
(4) The case document shall be submitted to each member of the
committee requesting their recommendation whether or not the
information warrants further investigation and an informal hearing.
(5) The department shall review committee recommendations and the
preliminary investigation findings and then decide whether to dismiss
the complaint or proceed to an informal committee hearing.
Dismissal of the charges shall be followed by a letter to both
complainant and the registered environmental health specialist
involved explaining the department's action.
(6) If the decision is made to proceed with an informal hearing,
the department shall request the committee to appoint one or more
hearing officers to hear the case.
(A) All parties shall be notified of the time and place of the
hearing.
(B) An investigation of the issue may be made by an independent
professional investigator if it is felt warranted by the department
and the committee. The investigation results shall be submitted to
the department, committee hearing officers, complainant, and
respondent prior to the hearing.
(C) The informal hearing shall permit the right to be heard (with
an attorney, if desired) and the proceedings recorded. Such a
hearing shall be considered an informal level of review and shall be
governed by subdivision (g) of Section 100171.
(D) Upon the finding that a violation of this section occurred,
the following disciplinary ranges may be recommended to the
department by the committee and may be adopted by the department if
the respondent does not timely request further review as specified in
subdivision (d):
(i) Knowingly made a false statement of fact required to be
revealed in the application for registration.
(I) Maximum: Revocation.
(II) Minimum: Fifteen-day suspension. Range depends on whether
or not the registration was falsely approved.
(ii) Been convicted of a crime, if the crime is related to the
qualifications, functions, and duties of a registered environmental
health specialist.
(I) Maximum: Deny, refuse to renew, or revocation of
registration.
(II) Minimum: Ninety-day actual suspension.
(iii) Knowingly made a false statement of fact required to be
revealed in an application for, or renewal of, registration.
(I) Maximum: Revocation.
(II) Minimum: Seven-day actual suspension.
(iv) Committed an act of deceit, misrepresentation, violation of
contract, fraud, negligence, professional incompetence, or unethical
practice.
(I) Maximum: Revocation.
(II) Minimum: Ninety-day suspension stayed for three years on the
following conditions of probation.
--Forty-five-day actual suspension.
--The respondent shall obey all laws and regulations related to
the practice of environmental health.
(c) A copy of the recommendation made to the department by the
committee shall be transmitted to the respondent within 10 calendar
days of its receipt by the department.
(d) The respondent may request further review of the
recommendation resulting from the informal level of review by sending
a letter so stating to the address specified in the letter
transmitting the recommendation. To be timely, the request shall be
postmarked no later than 15 calendar days after receipt by the
respondent of the recommendation at issue. Upon receiving a timely
request for review, the department shall set the matter for hearing
pursuant to Section 100171.
SEC. 27. Section 108900 of the Health and Safety Code is amended
to read:
108900. (a) The department may impose a civil penalty payable to
the department upon any person who violates this chapter or any
regulation adopted pursuant to this chapter in the amount of not more
than five thousand dollars ($5,000) per day. Each day a violation
continues shall be considered a separate violation.
(b) If, after examination of a possible violation and the facts
surrounding that possible violation, the department concludes that a
violation has occurred, the department may issue a complaint to the
person charged with the violation. The complaint shall allege the
acts or failures to act that constitute the basis for the violation
and the amount of the penalty. The complaint shall be served by
personal service or by certified mail and shall inform the person so
served of the right to a hearing.
(c) Any person served with a complaint pursuant to subdivision (c)
may, within 20 days after service of the complaint, request a
hearing by filing with the department a notice of defense. A notice
of defense is deemed to have been filed within the 20-day period if
it is postmarked within the 20-day period. If a hearing is requested
by the person, it shall be conducted within 90 days after the
receipt by the department of the notice of defense. If no notice of
defense is filed within 20 days after service of the complaint, the
department shall issue an order setting the penalty as proposed in
the complaint unless the department and the person have entered into
a settlement agreement, in that case the department shall issue an
order setting the penalty in the amount specified in the settlement
agreement. When the person has not filed a notice of defense or
where the department and the person have entered into a settlement
agreement, the order shall not be subject to review by any court or
agency.
(d) Any hearing required under this section shall be conducted
pursuant to Section 100171, except to the extent that the procedures
specified in Section 100171 are inconsistent with this section.
(e) Orders setting civil penalties under this section shall become
effective and final upon issuance thereof, and payment shall be made
within 30 days of issuance. A copy of the order shall be served by
personal service or by certified mail upon the person served with the
complaint.
(f) Within 30 days after service of a copy of a decision issued by
the director after a hearing, any person so served may file with the
superior court a petition for writ of mandate for review of the
decision. Any person who fails to file the petition within this
30-day period may not challenge the reasonableness or validity of the
decision or order of the director in any judicial proceeding brought
to enforce the decision or order or for other remedies. Section
1094.5 of the Code of Civil Procedure shall govern any proceedings
conducted pursuant to this subdivision. In all proceedings pursuant
to this subdivision, the court shall uphold the decision of the
director if the decision is based upon substantial evidence in the
whole record. The filing of a petition for writ of mandate shall not
stay any corrective action required pursuant to this chapter or the
accrual of any penalties assessed pursuant to this section. This
subdivision does not prohibit the court from granting any appropriate
relief within its jurisdiction.
(g) The remedies under this section are in addition to, and do not
supersede or limit, any and all other remedies, civil or criminal.
(h) If the violation is committed after a previous imposition of a
penalty under this section that has become final, if the violation
is committed with intent to mislead or defraud, or if the violation
concerns tableware primarily used by children or marketed for
children, the person shall be subject to imprisonment for not more
than one year in the county jail or imprisonment in state prison, by
a fine of not more than ten thousand dollars ($10,000), or by both
the imprisonment and fine.
SEC. 28. Section 111645 of the Health and Safety Code is amended
to read:
111645. Any violation of any provision of this part or any
regulation adopted pursuant to this part shall be grounds for denying
a license or for suspending or revoking a license. Proceedings for
the denial, suspension, or revocation of a license shall be conducted
pursuant to Section 100171.
SEC. 29. Section 111855 of the Health and Safety Code is amended
to read:
111855. (a) If any person violates any provision of this part, or
any regulation adopted pursuant to this part, the department may
assess a civil penalty against that person as provided by this
section.
(b) The penalty may be in an amount not to exceed one thousand
dollars ($1,000) per day. Each day a violation continues shall be
considered a separate violation.
(c) If, after examination of a possible violation and the facts
surrounding that possible violation, the department concludes that a
violation has occurred, the department may issue a complaint to the
person charged with the violation. The complaint shall allege the
acts or failures to act that constitute the basis for the violation
and the amount of the penalty. The complaint shall be served by
personal service or by certified mail and shall inform the person so
served of the right to a hearing.
(d) Any person served with a complaint pursuant to subdivision (c)
of this section may, within 20 days after service of the complaint,
request a hearing by filing with the department a notice of defense.
A notice of defense is deemed to have been filed within the 20-day
period if it is postmarked within the 20-day period. If a hearing is
requested by the person, it shall be conducted within 90 days after
the receipt by the department of the notice of defense. If no notice
of defense is filed within 20 days after service of the complaint,
the department shall issue an order setting the penalty as proposed
in the complaint unless the department and the person have entered
into a settlement agreement, in which case the department shall issue
an order setting the penalty in the amount specified in the
settlement agreement. When the person has not filed a notice of
defense or where the department and the person have entered into a
settlement agreement, the order shall not be subject to review by any
court or agency.
(e) Any hearing required under this section shall be conducted
pursuant to the procedures specified in Section 100171, except to the
extent they are inconsistent with the specific requirements of this
section.
(f) Orders setting civil penalties under this section shall become
effective and final upon issuance thereof, and payment shall be made
within 30 days of issuance. A copy of the order shall be served by
personal service or by certified mail upon the person served with the
complaint.
(g) Within 30 days after service of a copy of a decision issued by
the director after a hearing, any person so served may file with the
superior court a petition for writ of mandate for review of the
decision. Any person who fails to file the petition within this
30-day period may not challenge the reasonableness or validity of the
decision or order of the director in any judicial proceeding brought
to enforce the decision or order or for other remedies. Section
1094.5 of the Code of Civil Procedure shall govern any proceedings
conducted pursuant to this subdivision. In all proceedings pursuant
to this subdivision, the court shall uphold the decision of the
director if the decision is based upon substantial evidence in the
whole record. The filing of a petition for writ of mandate shall not
stay any corrective action required pursuant to this part or the
accrual of any penalties assessed pursuant to this section. This
subdivision does not prohibit the court from granting any appropriate
relief within its jurisdiction.
(h) The remedies under this section are in addition to, and do not
supersede, or limit, any and all other remedies, civil or criminal.
SEC. 30. Section 111940 of the Health and Safety Code is amended
to read:
111940. (a) If any person violates any provision of Chapter 4
(commencing with Section 111950), Chapter 5 (commencing with Section
112150), Chapter 6 (commencing with Section 112350), Chapter 7
(commencing with Section 112500), Chapter 8 (commencing with Section
112650), Chapter 10 (commencing with Section 113025), or Article 3
(commencing with Section 113250) of Chapter 11, or Chapter 4
(commencing with Section 108100) of Part 3, or any regulation adopted
pursuant to these provisions, the department may assess a civil
penalty against that person as provided by this section.
(b) The penalty may be in an amount not to exceed one thousand
dollars ($1,000) per day. Each day a violation continues shall be
considered a separate violation.
(c) If, after examination of a possible violation and the facts
surrounding that possible violation, the department concludes that a
violation has occurred, the department may issue a complaint to the
person charged with the violation. The complaint shall allege the
acts or failures to act that constitute the basis for the violation
and the amount of the penalty. The complaint shall be served by
personal service or by certified mail and shall inform the person so
served of the right to a hearing.
(d) Any person served with a complaint pursuant to subdivision (c)
of this section may, within 20 days after service of the complaint,
request a hearing by filing with the department a notice of defense.
A notice of defense is deemed to have been filed within the 20-day
period if it is postmarked within the 20-day period. If a hearing is
requested by the person, it shall be conducted within 90 days after
the receipt by the department of the notice of defense. If no notice
of defense is filed within 20 days after service of the complaint,
the department shall issue an order setting the penalty as proposed
in the complaint unless the department and the person have entered
into a settlement agreement, in that case the department shall issue
an order setting the penalty in the amount specified in the
settlement agreement. When the person has not filed a notice of
defense or where the
department and the person have entered into a settlement agreement,
the order shall not be subject to review by any court or agency.
(e) Any hearing required under this section shall be conducted
pursuant to the procedures specified in Section 100171, except to the
extent they are inconsistent with the specific requirements of this
section.
(f) Orders setting civil penalties under this section shall become
effective and final upon issuance thereof, and payment shall be made
within 30 days of issuance. A copy of the order shall be served by
personal service or by certified mail upon the person served with the
complaint.
(g) Within 30 days after service of a copy of a decision issued by
the director after a hearing, any person so served may file with the
superior court a petition for writ of mandate for review of the
decision. Any person who fails to file the petition within this
30-day period may not challenge the reasonableness or validity of the
decision or order of the director in any judicial proceeding brought
to enforce the decision or order or for other remedies. Section
1094.5 of the Code of Civil Procedure shall govern any proceedings
conducted pursuant to this subdivision. In all proceedings pursuant
to this subdivision, the court shall uphold the decision of the
director if the decision is based upon substantial evidence in the
whole record. The filing of a petition for writ of mandate shall not
stay any corrective action required pursuant to the Miscellaneous
Food, Food Facility, and Hazardous Substances Act (Section 27) or the
accrual of any penalties assessed pursuant to this section. This
subdivision does not prohibit the court from granting any appropriate
relief within its jurisdiction.
(h) The remedies under this section are in addition to, and do not
supersede, or limit, any and all other remedies, civil or criminal.
SEC. 31. Section 115145 of the Health and Safety Code is amended
to read:
115145. (a) In any proceeding under this chapter for granting or
amending any license, or for determining compliance with, or granting
exceptions from, regulations adopted in accordance with this
chapter, the department shall afford an opportunity for a hearing on
the record upon the request of any person whose interest may be
affected by the proceeding, and shall admit that person as a party to
the proceeding.
(b) Proceedings for the suspension or revocation of licenses under
this chapter shall be conducted pursuant to Section 100171.
(c) The adoption, repeal, or amendment of regulations pursuant to
this chapter shall be accomplished in conformity with Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code.
SEC. 32. Section 116425 of the Health and Safety Code is amended
to read:
116425. (a) The department may exempt any public water system
from any maximum contaminant level or treatment technique requirement
if it finds all the following:
(1) The public water system was in operation, or had applied for a
permit to operate, on the effective date of the maximum contaminant
level or treatment technique requirement.
(2) Due to compelling factors, which may include economic factors,
the public water system is unable to comply with the maximum
contaminant level or treatment technique requirement.
(3) The granting of the exemption will not result in an
unreasonable risk to health.
(b) If the department grants a public water system an exemption
for a primary drinking water standard under subdivision (a), the
department shall prescribe, at the time an exemption is granted, a
schedule for both of the following:
(1) Compliance by the public water system with each contaminant
level or treatment technique requirement for which the exemption was
granted.
(2) Implementation by the public water system of interim control
measures the department may require for each contaminant or treatment
technique requirement for which the exemption was granted.
(c) Any schedule prescribed by the department pursuant to this
section shall require compliance by the public water system with each
contaminant level or treatment technique requirement for which the
exemption was granted within 12 months from the granting of the
exemption.
(d) The final date for compliance with any schedule issued
pursuant to this section may be extended by the department for a
period not to exceed three years from the date of the granting of the
exemption if the department finds all of the following:
(1) The system cannot meet the standard without capital
improvements that cannot be completed within the period of the
exemption.
(2) In the case of a system that needs financial assistance for
the necessary improvements, the system has entered into an agreement
to obtain the financial assistance or the system has entered into an
enforceable agreement to become part of a regional public water
system.
(3) The system is taking all practicable steps to meet the
standard.
(e) In the case of a system that does not serve more than 500
service connections and that needs financial assistance for the
necessary improvements, an exemption granted pursuant to paragraph
(2) of subdivision (d) may be renewed for one or more additional
two-year periods if the system establishes that it is taking all
practicable steps to meet the requirements of subdivision (d).
(f) Prior to the granting of an exemption pursuant to this
section, the department shall provide notice and an opportunity for a
public hearing. Notice of any public hearing held pursuant to this
section shall be given by the department in writing to the public
water system seeking the exemption and to the public as provided in
Section 6061 of the Government Code. A public hearing provided
pursuant to this subdivision is not an adjudicative hearing and is
not required to comply with Section 100171.
SEC. 33. Section 116625 of the Health and Safety Code is amended
to read:
116625. (a) The department, after a hearing noticed and conducted
as provided in Section 100171, may suspend or revoke any permit
issued pursuant to this chapter if the department determines pursuant
to the hearing that the permittee is not complying with the permit,
this chapter, or any regulation, standard, or order issued or adopted
thereunder, or that the permittee has made a false statement or
representation on any application, record, or report maintained or
submitted for purposes of compliance with this chapter. If the
permit at issue has been temporarily suspended pursuant to
subdivision (c), the accusation shall be served and notice of the
hearing date given within 15 days of the effective date of the
temporary suspension order. The commencement of the hearing shall be
as soon as practicable, but in no case later than 60 days after the
effective date of the temporary suspension order.
(b) The permittee may file with the superior court a petition for
a writ of mandate for review of any decision of the department made
pursuant to subdivision (a). Failure to file a petition shall not
preclude a party from challenging the reasonableness or validity of a
decision of the department in any judicial proceeding to enforce the
decision or from pursuing any remedy authorized by this chapter.
(c) The department may temporarily suspend any permit issued
pursuant to this chapter prior to any hearing when the action is
necessary to prevent an imminent or substantial danger to health.
The director shall notify the permittee of the temporary suspension
and the effective date thereof and, at the same time, notify the
permittee that a hearing has been scheduled. The hearing shall be
held as soon as possible, but not later than 15 days after the
effective date of the temporary suspension and shall deal only with
the issue of whether the temporary suspension shall remain in place
pending a hearing on the merits. The temporary suspension shall
remain in effect until the hearing is completed and the director has
made a final determination on the temporary suspension, that in any
event shall be made within 15 days after the completion of the
hearing. If the determination is not transmitted within 15 days
after the hearing is completed, the temporary suspension shall be of
no further effect. Dissolution of the temporary suspension does not
deprive the department of jurisdiction to proceed with a hearing on
the merits under subdivision (a).
SEC. 34. Section 1953.5 is added to the Unemployment Insurance
Code, to read:
1953.5. The presiding officer may conduct all or part of a
hearing by telephone, television, or other electronic means,
notwithstanding a party's objection pursuant to Section 11440.30 of
the Government Code, on a showing of good cause by the party
requesting the hearing by telephone, television, or other electronic
means.
SEC. 35. Section 14088.23 of the Welfare and Institutions Code is
amended to read:
14088.23. (a) The department may apply one or more of the
following sanctions against any contractor for failure to comply with
the requirements of this article, regulations adopted by the
department, the contract between the contractor and the department,
or for other good cause shown. Good cause includes, but is not
necessarily limited to, three repeated and uncorrected findings of
serious deficiencies that have the potential to endanger patient
care, as defined by the department in accordance with this section,
identified in the medical audits conducted by the department:
(1) Terminate the contract.
(2) Suspend enrollment and marketing activities.
(3) Require the contractor to suspend or terminate personnel of
the contractor or to terminate participation by subcontractors
specified by the department.
(4) Impose civil penalties not to exceed ten thousand dollars
($10,000) per violation pursuant to regulations adopted by the
director. Unless imposed in error, penalties shall not be returned
to the plan.
(5) Take other appropriate action as determined necessary by the
department.
(b) The department shall give the contractor and any other persons
who may be directly interested not less than 30 days' notice of its
intention to impose any of the sanctions authorized by this section.
(c) The notice required by subdivision (b) shall be written, and
shall specify each requirement that has not been met, the proposed
effective date of the sanction or sanctions, and the amount and
duration of each proposed sanction.
(d) (1) Within five working days after the receipt of the written
notice required by subdivision (b), the contractor may submit notice
of its intent to comply with the requirements specified in the
written notice.
(2) If the contractor submits the notice of intent authorized by
paragraph (1), the department shall allow the contractor to
demonstrate its compliance with the requirements specified in the
department's written notice. Substantial compliance shall be
achieved within 30 calendar days from the date of the submission of
the notice of intent to comply by the contractor. Within 15 days
following the completion of the 30-day compliance correction period,
the department shall review the corrective actions taken by the
contractor and, if appropriate, approve those actions.
(3) If a contractor subject to notice to apply sanctions under
subdivision (b) does not demonstrate appropriate corrective
compliance within the 30-day corrective action period or does not
submit a notice of intent to comply with the requirements specified
in the notice required by subdivision (b), the department shall
notify the contractor, in writing, of the effective date and terms of
the sanction or sanctions applied pursuant to this section.
(4) The department may make one or more of the following temporary
suspension orders as an immediate sanction: temporarily suspend
enrollment activities, temporarily suspend marketing activities,
require the contractor temporarily to suspend specified personnel of
the contractor, or require the contractor temporarily to suspend
participation by a specified subcontractor. The temporary suspension
orders may be effective beginning on the first day after the
expiration of the 30-day compliance correction period, if the
contractor submitted a notice of intent to comply, but has not
demonstrated appropriate corrective action, or beginning on the first
day after the notice required by subdivision (b) if the contractor
did not submit a notice of intent to comply. All other sanctions
shall be effective no earlier than 20 days after the notice specified
in paragraph (3).
(5) If the department issues a temporary suspension order as an
immediate sanction, it shall notify the contractor of the nature and
effective date of the temporary suspension and at the same time shall
serve the provider with an accusation. Upon receipt of a notice of
defense filed by the contractor, the department shall, within 15
days, set the matter for hearing, which shall be held as soon as
possible, but not later than 30 days after receipt of the notice of
hearing by the contractor. The hearing may be continued at the
request of the contractor if a continuance is necessary to permit
presentation of an adequate defense. The temporary suspension order
shall remain in effect until the hearing is completed and the
department has made a final determination on the merits. However,
the temporary suspension order shall be deemed vacated if the
director fails to make a final determination on the merits within 60
days after the original hearing has been completed.
(6) A contractor may request a hearing in connection with any
sanctions applied pursuant to this section, other than those
contained in a temporary suspension order, within 15 working days
after the notice of the effective date of the sanctions has been
given pursuant to paragraph (3), by sending a letter so stating to
the address specified in the notice. The department shall stay
implementation of the sanction upon receipt of the request for a
hearing. Implementation of the sanction shall remain stayed until
the effective date of the final decision of the department.
(7) Except as otherwise provided herein, all hearings to review
the imposition of sanctions, including temporary suspension orders,
shall be held pursuant to the procedures set forth in Section 100171
of the Health and Safety Code.
(e) The department may collect civil penalties imposed pursuant to
this section by withholding the amount of the penalty from
capitation payments owed by the department to the contractor.
SEC. 36. Section 14123 of the Welfare and Institutions Code is
amended to read:
14123. Participation in the Medi-Cal program by a provider of
service is subject to suspension in order to protect the health of
the recipients and the funds appropriated to carry out this chapter.
(a) The director may suspend a provider of service from further
participation under the Medi-Cal program for violation of any
provision of this chapter or Chapter 8 (commencing with Section
14200) or any rule or regulation promulgated by the director pursuant
to those chapters. Any such suspension may be for an indefinite or
specified period of time and with or without conditions or may be
imposed with the operation of the suspension stayed or probation
granted. The director shall suspend a provider of service for
conviction of any felony or any misdemeanor involving fraud, abuse of
the Medi-Cal program or any patient, or otherwise substantially
related to the qualifications, functions, or duties of a provider of
service.
If the provider of service is a clinic, group, corporation, or
other association, conviction of any officer, director, or
shareholder with a 10 percent or greater interest in that
organization, of such a crime shall result in the suspension of that
organization and the individual convicted if the director believes
that suspension would be in the best interest of the Medi-Cal
program. If the provider of services is a political subdivision of
the state or other government agency, the conviction of the person in
charge of the facility of such a crime may result in the suspension
of that facility. The record of conviction or a certified copy
thereof, certified by the clerk of the court or by the judge in whose
court the conviction is had, shall be conclusive evidence of the
fact that the conviction occurred. A plea or verdict of guilty, or a
conviction following a plea of nolo contendere is deemed to be a
conviction within the meaning of this section.
After conviction, but before the time for appeal has elapsed or
the judgment of conviction has been affirmed on appeal, the director,
if he or she believes that suspension would be in the best interests
of the Medi-Cal program, may order the suspension of a provider of
service. When the time for appeal has elapsed, or the judgment of
conviction has been affirmed on appeal or when an order granting
probation is made suspending the imposition of sentence irrespective
of any subsequent order under Section 1203.4 of the Penal Code
allowing a person to withdraw his or her plea of guilty and to enter
a plea of not guilty, or setting aside the verdict of guilty, or
dismissing the accusation, information, or indictment, the director
shall order the suspension of a provider of service. The suspension
shall not take effect earlier than the date of the director's order.
Suspension following a conviction is not subject to the proceedings
required in subdivision (c). However, the director may grant an
informal hearing at the request of the provider of service to
determine in the director's sole discretion if the circumstances
surrounding the conviction justify rescinding or otherwise modifying
the suspension provided for in this subdivision.
If the provider of service appeals the conviction and the
conviction is reversed, the provider may apply for reinstatement to
the Medi-Cal program after the conviction is reversed.
Notwithstanding Section 14126.6, the application for reinstatement
shall not be subject to the one-year waiting period for the filing of
a reinstatement petition pursuant to Section 11522 of the Government
Code.
(b) Whenever the director receives written notification from the
Secretary of the United States Department of Health and Human
Services, that a physician or other individual practitioner has been
suspended from participation in the Medicare or medicaid programs,
the director shall promptly suspend the practitioner from
participation in the Medi-Cal program. This automatic suspension is
not subject to the proceedings required in subdivision (c). No
payment from state or federal funds may be made for any item or
service rendered by the practitioner during the period of suspension.
(c) The proceedings for suspension shall be conducted pursuant to
Section 100171 of the Health and Safety Code. The director may
temporarily suspend any provider of service prior to any hearing when
in his or her opinion that action is necessary to protect the public
welfare or the interests of the Medi-Cal program. The director
shall notify the provider of service of the temporary suspension and
the effective date thereof and at the same time serve the provider
with an accusation. The accusation and all proceedings thereafter
shall be in accordance with Section 100171 of the Health and Safety
Code. Upon receipt of a notice of defense by the provider, the
director shall set the matter for hearing within 30 days after
receipt of the notice. The temporary suspension shall remain in
effect until such time as the hearing is completed and the director
has made a final determination on the merits. The temporary
suspension shall, however, be deemed vacated if the director fails to
make a final determination on the merits within 60 days after the
original hearing has been completed. This subdivision does not apply
where the suspension of a provider is based upon the conviction of
any crime involving fraud, abuse of the Medi-Cal program, or
suspension from the federal Medicare program. In those instances,
suspension shall be automatic.
(d) The suspension by the director of any provider of service
shall preclude the provider from submitting claims for payment,
either personally or through claims submitted by any clinic, group,
corporation, or other association to the Medi-Cal program for any
services or supplies the provider has provided under the program,
except for services or supplies provided prior to the suspension. No
clinic, group, corporation, or other association which is a provider
of service shall submit claims for payment to the Medi-Cal program
for any services or supplies provided by a person within the
organization who has been suspended or revoked by the director,
except for services or supplies provided prior to the suspension.
Where the provisions of this chapter or Chapter 8 (commencing with
Section 14200) or the regulations promulgated by the director are
violated by a provider of service which is a clinic, group,
corporation, or other association, the director may suspend the
organization and any individual person within the organization who is
responsible for the violation.
(e) Notice of the suspension shall be sent by the director to the
provider's state licensing, certifying, or registering authority,
along with the evidence upon which the suspension was based.
(f) In addition to the bases for suspension contained in
subdivisions (a) and (b), the director may suspend a provider of
service from further participation under the Medi-Cal dental program
for the provision of services that are below or less than the
standard of acceptable quality, as established by the California
Dental Association Guidelines for the Assessment of Clinical Quality
and Professional Performance, Copyright 1995, Third Edition, as
periodically amended. Any such suspension shall be subject to the
requirements contained in subdivisions (a) to (e), inclusive.
SEC. 37. Section 14123.2 of the Welfare and Institutions Code is
amended to read:
14123.2. Any provider or person that presents or causes to be
presented a claim for services to an officer, employee, or agent of
the state, or of any department or agency thereof as defined in
appropriate state law, that the director determines is for a medical
or other item or service that the person knows or has reason to know;
(a) was not provided as claimed, or (b) payment for which may not be
made under the program in the following instances: (1) when the
person or provider has been suspended from participation in the
program, or (2) when the department determines that the services or
items claimed are substantially in excess of the needs of individuals
or are of a quality that fails to meet professionally recognized
standards of health care, or (3) when the department determines that
a person has demonstrated a pattern of abusive overbilling of the
program, or (4) when the department determines that a person has
intentionally or negligently made a false statement or representation
on any request for payment submitted to the Medi-Cal program; or (c)
is submitted in violation of an agreement between the person and the
state, shall be subject in addition to any other penalties that may
be prescribed by law, to a civil money penalty of not more than three
times the amount claimed for each item or service. For continuing
intentional violations, a civil money penalty of not more than three
times the amount claimed for each item or service may be imposed for
each day the violation continues.
The director shall make the determination to assess civil money
penalties and shall be responsible for the collection of the penalty
amounts.
The provider or person subjected to a civil money penalty may
appeal any decision by the director to assess the penalty pursuant to
Section 100171 of the Health and Safety Code.
Notwithstanding any other provisions of law, all money collected
pursuant to this section shall be deposited in the General Fund on a
monthly basis.
SEC. 38. Section 14124.6 of the Welfare and Institutions Code is
amended to read:
14124.6. In the event the director orders that oral argument or a
hearing be held upon a petition for reinstatement or reduction of
penalty filed pursuant to Section 11522 of the Government Code, he or
she may hear and decide the matter himself or herself or may, in his
or her discretion, either (1) sit and hear the matter with an
administrative law judge assigned by the department or (2) assign the
matter to an administrative law judge assigned by the department who
shall proceed in accordance with Section 100171 of the Health and
Safety Code, and who shall prepare a proposed decision for the
department for action pursuant to Section 11517 of the Government
Code.
SEC. 39. Section 14126.50 of the Welfare and Institutions Code is
amended to read:
14126.50. Facilities and previous licensees of facilities may
appeal the result of any department audit pursuant to this article,
as provided in Section 100171 of the Health and Safety Code.
SEC. 40. Section 14171 of the Welfare and Institutions Code is
amended to read:
14171. (a) The director shall establish administrative appeal
processes to review grievances or complaints arising from the
findings of an audit or examination made pursuant to Sections 10722
and 14170 and for final settlements, including, in the case of
hospitals, the application of Sections 51536, 51537, and 51539 of
Title 22 of the California Code of Regulations. All these processes
shall be established by regulation, pursuant to, and consistent with,
Section 100171 of the Health and Safety Code.
(b) Different administrative appeal processes may be established
by the director for grievances or complaints arising from the
determinations of a tentative or final settlement based on audit or
examination findings made by or on behalf of the department pursuant
to Sections 10722 and 14170. However, consistent with existing
practice, no administrative appeal shall be available for tentative
settlement of cost reports.
(c) The administrative appeal process established by the director
for tentative settlements, including, in the case of hospitals, the
application of Sections 51536, 51537, and 51539 of Title 22 of the
California Code of Regulations shall be an informal process which,
however, guarantees a provider the right to present any grievance or
complaint to the department in writing. Any subsequent hearings
shall be conducted in an informal manner and shall be held at the
discretion of the department.
(d) The time limitations in subdivisions
(e) and (f) for the impartial hearing and the final decisions are
mandatory. If the department fails to conduct the hearing or to
adopt a final decision thereon within the time limitations provided
in subdivisions (e) and (f), the amount of any overpayment which is
ultimately determined by the department to be due shall be reduced by
10 percent for each 30-day period, or portion thereof, that the
hearing or the decision, or both, are delayed beyond the time
limitations provided in subdivisions (e) and (f). However, the time
period shall be extended by either of the following:
(1) Delay caused by a provider.
(2) Extensions of time granted a provider at its sole request or
at the joint request of the provider and the department.
(e) (1) The administrative appeal process established by the
director shall commence with an informal conference with the
provider, a representative of the department, and the administrative
law judge. The informal conference shall be conducted no later than
90 days after the filing of a timely and specific statement of
disputed issues by the provider. The administrative law judge, when
appropriate, may assign the administrative appeal to an informal
level of review where efforts could be made to resolve facts and
issues in dispute in a fair and equitable manner, subject to the
requirements of state and federal law. The review conducted at this
informal level shall be completed no later than 180 days after the
filing of a timely and specific statement of disputed issues by the
provider.
(2) Nothing in this subdivision shall prohibit the provider from
presenting any unresolved grievances or complaints at an impartial
hearing pursuant to subdivision (a). The impartial hearing shall be
conducted no later than 300 days after the filing of a timely and
specific statement of disputed issues by the provider.
(3) (A) Subject to subdivision (f), a final decision in a
noninstitutional provider appeal shall be adopted within 180 days
after the closure of the record of the impartial hearing, and a final
decision in an institutional provider appeal shall be adopted within
300 days after the closure of the record of the impartial hearing.
(B) The department shall mail a copy of the adopted decision to
all parties within 30 days of the date of adoption of the decision.
(f) In the event the director intends to modify a proposed
decision, on or before the 180th day following the closure of the
record of the hearing for noninstitutional providers or the 300th day
following the closure of the record of the hearing for institutional
providers, the director shall provide written notice of his or her
intention to the parties and shall afford the parties an opportunity
to present written argument. Following this notice, on or before the
240th day following the closure of the record of the hearing for
noninstitutional providers or the 420th day following closure of the
record of the hearing for institutional providers, or within that
additional time period as is granted pursuant to the sole request of
a provider or at the joint request of the provider and the
department, the director shall issue a final decision.
(g) In the event recovery of a disallowed payment has been made by
the department, a provider who prevails in an appeal of a disallowed
payment shall be entitled to interest at the rate equal to the
monthly average received on investments in the Surplus Money
Investment Fund, commencing on the date the appeal is formally
accepted by the department or the date payment is received by the
department, whichever is later.
(h) Except as provided in subdivision (i), commencing 60 days
after issuance of the first statement of account status or demand for
repayment resulting from an audit or examination made pursuant to
Sections 10722 and 14170, interest at the rate equal to the monthly
average received on investments in the Surplus Money Investment Fund
during the month the first statement of account status or demand for
repayment was issued shall be assessed against any unrecovered
overpayment due to the department.
(i) (1) Commencing on the day following the last day of the period
covered by an audit or examination made pursuant to Sections 10722
and 14170, interest at the rate established under Section 19269 of
the Revenue and Taxation Code which is in effect on the date of the
commencement of that interest shall be assessed against any
unrecovered overpayment due to the department by providers of durable
medical equipment or incontinence supplies.
(2) Interest which accrues under this subdivision for recoupment
of an overpayment based on the lack of medical necessity for a
previously approved claim shall commence to accrue on the date of
written demand by the department.
(j) The final decision of the director shall be reviewable in
accordance with Section 1094.5 of the Code of Civil Procedure within
six months of the issuance of the director's final decision.
SEC. 41. Section 14171.5 of the Welfare and Institutions Code is
amended to read:
14171.5. Any institutional provider of health care services that
obtained reimbursement under this chapter to which it is not entitled
shall be subject to the following interest charges or penalties:
(a) When it is established upon audit that the provider has
claimed payments under this chapter to which it is not entitled, the
provider shall pay, in addition to the amount improperly received,
interest at the rate specified by subdivision (h) of Section 14171.
(b) When it is established upon audit that the provider claimed
payments related to services or costs that the department had
previously notified the provider in an audit report that the costs or
services were not reimbursable, the provider shall pay in addition
to the amount improperly claimed, a penalty of 10 percent of the
amount improperly claimed after this notice, plus the cost of the
audit. In addition, interest shall be assessed at the rate specified
in subdivision (h) of Section 14171. Providers who wish to preserve
appeal rights or to challenge the department's positions regarding
appeal issues, may claim such cost or services and not be reimbursed
therefor, provided that they are identified and presented separately
on the cost report.
(c) When it is established that the provider fraudulently claimed
and received payments under this chapter, the provider shall pay a
penalty of 25 percent of the amount improperly claimed, plus the cost
of the audit, in addition to the amount thereof. In addition,
interest will be assessed at the rate specified by subdivision (h) of
Section 14171. A fraudulent claim is a claim upon which the
provider has been convicted of fraud upon the program. Nothing in
this section shall prevent the imposition of any other civil or
criminal penalties to which the provider may be liable.
(d) Appeals to action taken in subdivisions (a), (b), and (c) of
Section 14171.5 above are subject to the administrative appeals
process provided by Section 14171.
(e) Penalties paid by providers under subdivisions (a), (b), and
(c) of Section 14171.5 are not reimbursable by the program.
(f) As used in this section, "the cost of the audit" includes
actual hourly wages, travel, and incidental expenses at rates
allowable by State Board of Control rules, and applicable overhead
costs.
SEC. 42. Section 14171.6 of the Welfare and Institutions Code is
amended to read:
14171.6. (a) Any provider of durable medical equipment or
incontinence supplies that obtains reimbursement under this chapter
to which it is not entitled shall be subject to interest charges or
penalties as specified in this section.
(b) When it is established upon audit that the provider has
claimed payments under this chapter to which it is not entitled, the
provider shall pay, in addition to the amount improperly received,
interest at the rate specified by subdivision (i) of Section 14171.
(c) (1) When it is established upon audit that the provider
claimed payments related to services or costs that the department had
previously notified the provider in an audit report that the costs
or services were not reimbursable, the provider shall pay, in
addition to the amount improperly claimed, a penalty of 10 percent of
the amount improperly claimed after receipt of the notice, plus the
cost of the audit.
(2) In addition to the penalty and costs specified by paragraph
(1), interest shall be assessed at the rate specified in subdivision
(i) of Section 14171.
(3) Providers that wish to preserve appeal rights or to challenge
the department's positions regarding appeal issues may claim the
costs or services and not be reimbursed therefor if they are
identified and presented separately on the cost report.
(d) (1) When it is established that the provider fraudulently
claimed and received payments under this chapter, the provider shall
pay, in addition to the amount improperly claimed, a penalty of 300
percent of the amount improperly claimed, plus the cost of the audit.
(2) In addition to the penalty and costs specified by paragraph
(1), interest shall be assessed at the rate specified by subdivision
(i) of Section 14171.
(3) For purposes of this subdivision, a fraudulent claim is a
claim upon which the provider has been convicted of fraud upon the
Medi-Cal program.
(e) Nothing in this section shall prevent the imposition of any
other civil or criminal penalties to which the provider may be
liable.
(f) Any appeal to any action taken pursuant to subdivision (b),
(c), or (d) is subject to the administrative appeals process provided
by Section 14171.
(g) As used in this section, "cost of the audit" includes actual
hourly wages, travel, and incidental expenses at rates allowable by
rules adopted by the State Board of Control and applicable overhead
costs that are incurred by employees of the state in administering
this chapter with respect to the performance of audits.
SEC. 43. Section 14304 of the Welfare and Institutions Code is
amended to read:
14304. (a) The director shall terminate a contract with a prepaid
health plan or a Medi-Cal managed health care plan if he or she
finds that the standards prescribed in this chapter, the regulations,
or the contract are not being complied with, that claims accrued or
to accrue have not or will not be recompensed, or for other good
cause shown. Good cause includes, but is not necessarily limited to,
three repeated and uncorrected findings of serious deficiencies that
have the potential to endanger patient care, as defined by the
department in accordance with this section, identified in the medical
audits conducted by the department. Except in the event that the
director determines there is an immediate threat to the health of
Medi-Cal beneficiaries enrolled in the plan, at the request of the
plan, the department shall hold a public hearing to commence 30 days
after notice of intent to terminate the contract has been received by
the plan. The department shall present evidence at the hearing
showing good cause for the termination. The department shall assign
an administrative law judge who shall provide a written
recommendation to the department on the termination of the contract
within 30 days after conclusion of the hearing. Reasonable notice of
the hearing shall be given to the plan, to Medi-Cal beneficiaries
enrolled in the plan, and others who may be directly interested,
including any other persons and organizations as the director may
deem necessary. The notice shall state the effective date of, and
the reason for, the termination.
(b) In lieu of contract termination specified in subdivision (a),
the director shall have the power and authority to take one or more
of the following sanctions against a contractor for noncompliance
with the findings by the director as specified in subdivision (a):
(1) Suspend enrollment and marketing activities.
(2) Require the contractor to suspend or terminate contractor
personnel or subcontractors.
(3) Impose civil penalties not to exceed ten thousand dollars
($10,000) per violation pursuant to regulations adopted by the
director. Unless imposed in error, penalties shall not be returned
to the plan.
(4) Make one or more of the temporary suspension orders set out in
subdivision (d).
(5) Take other appropriate action as determined necessary by the
department.
The director shall give reasonable notice of his or her intention
to apply any of the sanctions authorized by this subdivision to the
plan and others who may be directly interested, including any other
persons and organizations as the director may deem necessary. The
notice shall include the effective date, the duration of, and the
reason for each sanction proposed by the director.
(c) Notwithstanding subdivision (b), the director shall terminate
a contract with a prepaid health plan which the United States
Secretary of Health and Human Services has determined does not meet
the requirements for participation in the medicaid program contained
in Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title
42 of the United States Code.
(d) The department may make one or more of the following temporary
suspension orders as an immediate sanction: temporarily suspend
enrollment activities, temporarily suspend marketing activities,
require the contractor temporarily to suspend specified personnel of
the contractor, or require the contractor temporarily to suspend
participation by a specified subcontractor. The temporary suspension
orders must be effective no earlier than 20 days after the notice
specified in subdivision (b).
If the department issues a temporary suspension order as an
immediate sanction, it shall notify the contractor of the nature and
effective date of the temporary suspension and at the same time shall
serve the provider with an accusation. Upon receipt of a notice of
defense filed by the contractor, the department shall within 15 days
set the matter for hearing, which shall be held as soon as possible,
but not later than 30 days after receipt of the notice of hearing by
the contractor. The hearing may be continued at the request of the
contractor if a continuance is necessary to permit presentation of an
adequate defense. The temporary suspension order shall remain in
effect until the hearing is completed and the department has made a
final determination on the merits. However, the temporary suspension
order shall be deemed vacated if the director fails to make a final
determination on the merits within 60 days after the original hearing
has been completed.
(e) A contractor may request a hearing in connection with any
sanctions applied pursuant to subdivision (b), other than those
contained in a temporary suspension order, within 15 working days
after the notice of the effective date of the sanctions has been
given, by sending a letter so stating to the address specified in the
notice. The department shall stay implementation of the sanction
upon receipt of the request for a hearing. Implementation of the
sanction shall remain stayed until the effective date of the final
decision of the department.
(f) Except as otherwise provided in this section, all hearings to
review the imposition of sanctions, including temporary suspension
orders, shall be held pursuant to the procedures set forth in Section
100171 of the Health and Safety Code.
(g) The director may collect civil penalties by withholding the
amount from capitation owed to the plan.
SEC. 44. This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:
Chapter 938 of the Statutes of 1995 enacted major revisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340), Chapter 4 (commencing with Section 11370), and Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code). In order to integrate the provisions of this
act with those of Chapter 938 of the Statutes of 1995 at the earliest
possible time, and thus avoid needless confusion, duplication, and
expense among providers and recipients of health care related
services, it is necessary that this act take effect immediately.